Case of McElroy

Decision Date12 June 1986
Citation494 N.E.2d 1,397 Mass. 743
PartiesJesse T. McELROY'S, Jr. CASE.
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court

Richard J. Ferriter, Boston, for employee.

Edward J. Mahan, Framingham, for employer.


HENNESSEY, Chief Justice.

The question of first impression presented by this workers' compensation appeal is whether an employee may be awarded compensation for injuries suffered in an automobile accident occurring while the employee was en route to a doctor's office for treatment of a work-related injury.

The following facts are undisputed. The employee worked for the General Motors Corporation (self-insurer) in its plant in Framingham. On April 28, 1978, the employee suffered a back injury while working on the assembly line. He was out of work from the date of his injury until January 16, 1979, and received weekly benefits for that period. On his return to work, the employee was assigned to a light duty job. However, he was transferred back to his regular assembly line job when another employee with more seniority returned from pregnancy leave. Soon after this transfer, the employee began complaining of a recurrence of back pain. Dr. Charles Bonzey, the General Motors Corporation plant physician, determined that the employee's pain was caused by his return to heavier work. The employee ceased work on February 15, 1980. The self-insurer concedes that from February 15, 1980, to March 21, 1980, the employee was temporarily totally disabled as a result of a work-related back injury.

The employee was checked periodically by Dr. Bonzey at the plant clinic, and also began treatment with a private physician, Dr. Hurwitz. Dr. Hurwitz maintained offices in Marlborough. On the afternoon of March 21, 1980, the employee was driving his own motor vehicle to Marlborough to keep an appointment with Dr. Hurwitz. While en route to the doctor's office, the employee was involved in a motor vehicle accident. He sustained catastrophic medical injuries, including but not limited to a 100% loss of function of his right arm. Since March 21, 1980, the employee's medical problems have related solely to the injury arising out of the automobile accident, and there is no indication in the record that he has undergone any further treatment for his back condition.

The employee brought a claim for workers' compensation benefits before the Industrial Accident Board (board). After a hearing, a single member of the board found that the employee had been traveling to Marlborough at the time of the accident for the purpose of obtaining medical treatment for a work-related injury, and ruled as a matter of law that injuries sustained in such an accident are compensable under G.L. c. 152, § 26 (1984 ed.). The self-insurer was ordered to pay related benefits and medical expenses. The self-insurer filed a claim for review. The reviewing board adopted the findings and decision of the single member.

The self-insurer sought review of this decision in the Superior Court. The self-insurer did not contest the award of compensation from February 15, 1980, to March 21, 1980, conceding that the employee suffered from a work-related back injury which left him temporarily totally disabled during that period. The self-insurer only contested the award of compensation after the date of the automobile accident. The Superior Court judge reversed the decision of the board, ruling that (1) the single member's finding that the employee was en route to obtain medical treatment for a work-related injury at the time of his accident was not based on adequate subsidiary findings, and (2) even if the single member properly could have found that the employee was en route to obtain medical treatment at the time of his accident, injuries sustained during such a trip are not compensable as a matter of law under G.L. c. 152, § 26. The employee appealed. We granted the self-insurer's application for direct appellate review, and now reverse.

1. Medical Treatment

The reviewing board affirmed and adopted the decision of the single member; thus, we look to this decision to determine whether the action of the board was correct. Haley's Case, 356 Mass. 678, 679-680, 255 N.E.2d 322 (1970). Ballard's Case, 13 Mass.App.Ct. 1068, 434 N.E.2d 1306 (1982). "It is the exclusive function of the board to consider and weigh the evidence and to ascertain and settle the facts." McEwen's Case, 369 Mass. 851, 853, 343 N.E.2d 869 (1976), quoting Chapman's Case, 321 Mass. 705, 707, 75 N.E.2d 433 (1947). A reviewing court may not reexamine the evidence to determine whether it is substantial or credible. McEwen's Case, supra, 369 Mass. at 854, 343 N.E.2d 869. The decision of the board must be upheld unless it is wholly lacking in evidentiary support, or a different conclusion is required as a matter of law. Corraro's Case, 380 Mass. 357, 359, 403 N.E.2d 388 (1980). Anderson's Case, 373 Mass. 813, 816, 370 N.E.2d 692 (1977).

The single member found as a fact that the automobile accident "occurred while the employee was seeking medical treatment" for his back injury. This finding is supported by the evidence. The employee testified that he began undergoing treatments with Dr. Hurwitz after his back injury. The employee further testified that he was traveling to Dr. Hurwitz's office in Marlborough at the time of the accident to discuss with Dr. Hurwitz an electromyogram which had been scheduled by the plant physician for the following week. During this regularly scheduled appointment, the employee also planned to pick up an authorization card for his weekly physical therapy sessions. According to the employee's testimony, Dr. Hurwitz would "look[] at my back, ask[] me to do certain movements, ... then he made out a card for me to go to the hospital for therapy." This testimony supports the single member's finding that the employee was traveling to Marlborough on March 21, 1980, for the purpose of obtaining medical treatment, including examination by and consultation with his private physician.

The Superior Court judge ruled that the single member's finding regarding medical treatment was not supported by adequate subsidiary findings. While we have previously indicated that the board should make such specific and detailed subsidiary findings as will enable the reviewing court to determine with reasonable certainty whether correct rules of law have been applied (see Messersmith's Case, 340 Mass. 117, 120, 163 N.E.2d 22 [1959]; Chapman's Case, 321 Mass. 705, 711, 75 N.E.2d 433 [1947] ), this principle is intended to safeguard the function of the reviewing court, and not to regulate the precise form of the board's decision.

In this case, the single member made adequate subsidiary findings which explained and supported his ultimate finding regarding medical treatment. The single member found that the employee "experience[d] a recurrence of back pain," as a result of which he ceased work on February 15, 1980, and "began treating with a private physician, Dr. Hurwitz." The single member also found that "on the afternoon of March 21, 1980, the employee was driving his own motor vehicle to Marlborough, Massachusetts, to keep an appointment with Doctor Hurwitz, his attending physician." This statement of subsidiary findings was adequate to reveal the basis for the single member's ultimate finding, and to enable the reviewing court to determine whether correct principles of law had been applied. See Tripp's Case, 355 Mass. 515, 518 n. 1, 246 N.E.2d 449 (1969); DiClavio's Case, 293 Mass. 259, 261-262, 199 N.E. 732 (1936).

2. Compensability

This court has never addressed the question whether an employee's injuries sustained in a motor vehicle accident while traveling to a doctor's office for treatment of a work-related injury are compensable under G.L. c. 152, § 26. 1 A majority of jurisdictions which have addressed this issue have held that these second injuries are compensable. E.g., Laines v. Workmen's Compensation Appeals Bd., 48 Cal.App.3d 872, 877, 122 Cal.Rptr. 139 (1975); Taylor v. Centex Constr. Co., 191 Kan. 130, 135, 379 P.2d 217 (1963); Moreau v. Zayre Corp., 408 A.2d 1289, 1293 (Me.1979); Charles N. Clark Assocs. v. Dependents of Robinson, 357 So.2d 924, 929 (Miss.1978); Camp v. Lockheed Electronics, Inc., 178 N.J.Super. 535, 544, 429 A.2d 615 (App.Div.1981); Immer & Co. v. Brosnahan, 207 Va. 720, 722-723, 152 S.E.2d 254 (1967). See generally, 1 A. Larson, Workmen's Compensation § 13.13 (1985). Contra Snowbarger v. M.F.A. Cent. Co-op., 349 S.W.2d 224, 226 (Mo.1961) (denying compensation where employee not directed to visit second doctor). Where a compensable, work-related injury is the cause of the employee's journey to the doctor's office, injuries sustained en route generally are considered to have arisen in the course of employment. 2 See 1 A. Larson, supra. Because an employer has a duty to provide, and an employee has a duty to accept, medical treatment for work-related injuries, an employee who is traveling to or from a place of medical treatment is fulfilling an implied obligation of the employment contract. See Laines, supra; Moreau, supra.

Those jurisdictions which allow benefits in these circumstances have done so on the basis of the "arising out of and in the course of his employment" language found in their respective workers' compensation statutes. However, the Massachusetts workers' compensation statute makes separate provision for "street risks," such as automobile accidents, which are common to all persons traveling on public highways and not incident to any particular employment relationship. 3 G.L. c. 152, § 26. See Hamel's Case, 333 Mass. 628, 629, 132 N.E.2d 403 (1956) (injury to employee arising from automobile accident properly compensable under street risks provision, even though improperly analyzed by board as injury "arising out of and in the...

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